Ex Parte Chapman et alDownload PDFPatent Trial and Appeal BoardMar 16, 201713791491 (P.T.A.B. Mar. 16, 2017) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/791,491 03/08/2013 Fred Chapman 7257-0329_PB9986.01 4027 126679 7590 03/20/2017 T ane. Powell PC EXAMINER PO Box 91302 MALAMUD, DEBORAH LESLIE 1420 Fifth Ave., Suite 4200 Seattle, WA 98111-9402 ART UNIT PAPER NUMBER 3766 NOTIFICATION DATE DELIVERY MODE 03/20/2017 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): Patents @LanePowell. com phy sio_control_docketing @ cardinal-ip. com IPMail.MedSurgGroup @ Stryker, com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRED CHAPMAN, JOSEPH SULLIVAN, and SCOTT SCHWEIZER Appeal 2015-001707 Application 13/791,491 Technology Center 3700 Before MICHAEL C. ASTORINO, JAMES A. WORTH, and CYNTHIA L. MURPHY, Administrative Patent Judges. MURPHY, Administrative Patent Judge. DECISION ON APPEAL The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s rejections of claims 1—12. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We REVERSE. 1 The Appellants identify the real party in interest as “Physio-Control, Inc.” (Appeal Br. 3.) Appeal 2015-001707 Application 13/791,491 STATEMENT OF THE CASE The Appellants’ invention relates “to defibrillators that deliver energy to a patient.” (Spec. 1,11. 10—11.) Independent Claims 1. A method comprising: applying a first excitation current at a first frequency to a patient; measuring a first impedance of the patient by measuring a response of the patient to application of the first excitation current; selecting a second frequency of a second excitation current as a function of the first measured impedance and a dosage of at least one of energy and defibrillation current to be delivered to the patient with a defibrillator. 7. A defibrillator comprising: a current source that generates an excitation current at a selectable frequency; at least two electrodes configured to deliver the excitation current to a patient at a selected frequency; an impedance measuring circuit that measures the voltage across the electrodes and measures an impedance as a function of the voltage and the excitation current; and a processor that selects the selected frequency of the excitation current as a function of a dosage of at least one of energy and defibrillation current to be delivered to the patient. Rejections I. The Examiner rejects claims 1—3 and 6—10 under 35 U.S.C. § 102(b) as anticipated by Hudrlik (US 5,282,840 issued February 1, 1994). (Final Action 4.) II. The Examiner rejects claims 4 and 5 under 35 U.S.C. § 103(a) as unpatentable over Hudrlik. (Final Action 5.) 2 Appeal 2015-001707 Application 13/791,491 III. The Examiner rejects claims 11 and 12 under 35 U.S.C. § 103(a) as unpatentable over Hudrlik and Charbonnier (US 5,111,813, issued May 12, 1992). (Final Action 5.) ANALYSIS Claims 1 and 7 are the independent claims on appeal, with the rest of the claims on appeal (i.e., claims 2—6 and 8—12) depending therefrom. (See Appeal Br., Claims App.) Independent claim 1 recites “a first excitation current,” “a first frequency,” “a second excitation current,” and “a second frequency.” (Appeal Br., Claims App.) Independent claim 7 recites “an excitation current” and “a selectable frequency.” (Id.) The Examiner finds that Hudrlik discloses excitation currents and corresponding excitation frequencies. (See Final Action 4.) Hudrlik discloses “excitation signals” at “selected frequencies” and Hudrlik discloses that “[t]he measured impedances at the selected frequencies” may be used to “sense the condition of the tissue to which the excitation signals are applied.” (Hudrlik, col. 2, 11. 62-68.) Independent claim 1 also recites a step of “selecting [the] second frequency of [the] second excitation current” as a function of “a dosage.” (Appeal Br., Claims App.) Independent claim 7 also recites a processor that “selects the selected frequency of the excitation current” as a function of “a dosage.” (Id.) The Examiner finds that Hudrlik discloses a stimulation device that delivers a dosage; and the Examiner finds that Hudrlik discloses selecting a frequency based on this dosage. (See Final Action 4; see also Answer 6—7.) As indicated above, Hudrlik discloses measuring impedances at the selected frequencies of the excitation signals. Hudrlik additionally 3 Appeal 2015-001707 Application 13/791,491 discloses that its invention “may provide a heart pacemaker which varies the pacing rate in dependence upon the impedance measurements.” (Hudrlik, col. 3,11. 9-18.) The Appellants argue that Hudrlik does not disclose selecting the frequency of an excitation current “as a function of dosage.” (Appeal Br. 11.) We are persuaded by the Appellants’ argument because the Examiner does not sufficiently explain how or why Hudrlik discloses selecting the frequency of an excitation current as a function of dosage. The Examiner maintains that Hudrlik’s pacemaker “provides a preliminary current at a selected frequency or frequencies, senses the impedance, and then applies [a second] current at a selected frequency or frequencies that is adjusted based on this sensed impedance.” (Answer 5.) The Examiner explains that the energy of the preliminary current is “a dosage of energy,” the sensed impedance depends upon this dosage’s “effects on patient tissue,” and the frequency of the second current is adjusted based on this dosage-dependent impedance. {Id. at 5, 7.) Therefore, according to the Examiner, Hudrlik “selects a second frequency based on a dosage of energy as in the claimed invention.” {Id. at 7.) The problem with the Examiner’s position is that there is no explanation as to why Hudrlik’s frequency-adjusted second current can be considered an “excitation current.” Indeed, if the Examiner considers the Hudrlik’s preliminary current to be a dosage of energy, the subsequent frequency-adjusted current would seem to also constitute a dosage of energy. And the Examiner does not adequately address why what seems to be a dosage current is instead or additionally an excitation current. According to the Appellants, Hudrlik’s pacemaker uses impedance-measuring excitation 4 Appeal 2015-001707 Application 13/791,491 currents that have pre-chosen frequencies (see Reply Br. 2); and, if so, Hudrlik’s excitation currents would be distinct from dosage currents having feedback-adjusted frequencies. As noted by the Examiner (see Final Action 3; see also Answer 5), Hudrlik states that “[t]wo or more excitation frequencies are typically used, one at an impedance peak, one displaced from the impedance peak, preferably at a frequency which defines an impedance minimum.” (Hudrlik, col. 3,11. 1—4.) As additionally noted by the Examiner (see Final Action 3; see also Answer 5), Hudrlik states that these excitation frequencies “should be chosen such that the event of interest causes a substantial change in the relative values in the impedances at the excitation frequencies.” (Hudrlik, col. 3,11. 4—8.) However, these statements support the Appellants’ position (see Appeal Br. 10-11, see also Reply Br. 1—2) that Hudrlik discloses using pre-chosen excitation frequencies to measure impedance, as opposed to iteratively adjusting excitation frequencies during operation of a stimulation device. Consequently, while the Examiner may establish that Hudrlik discloses “select[ing] a second frequency based on a dosage of energy” (Answer 7), the Examiner does not sufficiently explain how or why Hudrlik discloses selecting a frequency of an excitation current based on a dosage of energy. As indicated above, independent claim 1 recites the step of “selecting a second frequency of a second excitation current” as a function of a dosage; and independent claim 7 recites that the processor “selects the selected frequency of the excitation current” as a function of a dosage. (Appeal Br., Claims App., emphasis added.) 5 Appeal 2015-001707 Application 13/791,491 Thus, we do not sustain the Examiner’s rejection of independent claims 1 and 7 under 35 U.S.C. § 102(b) as anticipated by Hudrlik (Rejection I). The Examiner’s further findings and determinations with respect to the dependent claims (see Final Action 4—6) do not compensate for the above-discussed shortcoming in the Examiner’s rejection of independent claims 1 and 7. In particular, these findings and determinations do not establish that it would have been obvious for Hudrlik’s stimulation device to adjust an excitation frequency as a function of a dosage of energy. For example, the Examiner relies upon Charbonnier to teach “an external defibrillator that delivers energy at a selected dosage and frequency” (Final Action 6), however, according to the Appellants, Charbonnier “is silent” regarding “how the frequency of the excitation signal is chosen” (Appeal Br. 13). Thus, we do not sustain the Examiner’s rejection of dependent claims 2, 3, 6, and 8—10 under 35 U.S.C. § 102(b) as anticipated by Hudrlik (Rejection I); we do not sustain the Examiner’s rejection of dependent claims 4 and 5 under 35 U.S.C. § 103(a) as unpatentable over Hudrlik (Rejection II), and we do not sustain the Examiner’s rejection of dependent claims 11 and 12 under 35 U.S.C. § 103(a) as unpatentable over Hudrlik and Charbonnier (Rejection III). DECISION We REVERSE the Examiner’s rejections of claims 1—12. REVERSED 6 Copy with citationCopy as parenthetical citation